CONSTITUTION I

SEMESTER V
A RESEARCH PROJECT ON:

An Analysis on Executive Tyranny of Preventive Detention Laws in India

SUBMITTED TO:

Prof. Kalyani Buche

Assistant Professor, NMIMS Kirit P Mehta School of Law

SUBMITTED BY:

Name: Satyam Malakar

Roll No.: B017
BA LLB(Hons.) Division B
TABLE OF CONTENTS

1. Abstract

2. Introduction

3. Constitutional paradox of preventive detention laws in India

4. Preventive Detention as a tool for executive tyranny

5. Judiciary in Preventive Detention Cases

6. Comparative Analysis of Preventive Detention Laws

7. India's Preventive Detention Law: A Brief History

8. The Legislative Authority Over Preventive Detention and Its

Limits

9. Suggested Actions from the South African Human Resources

Development Commission

10. Conclusion
ABSTRACT

Preventive detention laws need to be scrutinized with skepticism in today's liberal-democratic

period, when the right to personal liberty is almost universally recognized as of paramount
importance and courts throughout the globe routinely intervene in situations involving its
violation. They provide for the detention and restriction of the rights of people only on the basis
of the reasonable suspicion that they would conduct an act harmful to law and order, without
regard to whether or not they have been formally charged with or convicted of any crime.

As contrast to laws that allow for punishment only after an offence has occurred (post-facto
punitive), such laws are based on the principle of retroactive prevention. Both sides of the
argument have valid points: those who see these laws as a necessary evil in today's society and
others who see them as a weapon of administrative dictatorship designed to protect the
interests of certain vote-banks. In today's liberal-democratic period, when the value of
individual freedom is widely acknowledged and courts throughout the globe are quick to step in
when it is threatened, preventative detention statutes need close scrutiny. They may be used to
imprison people and limit their freedom without any conviction or pending trial for any crime,
but on the basis of reasonable suspicion that they would violate public safety laws.

In this paper I the author has critically analyzed each and every aspect of Preventive Detention
Laws in India, its comparison with different democratic countries across the world. The author
has also tried to give his opinion on the question of Preventive Detention is a tool for executive
tyranny or not by stating relevant facts.

Further, the paper also aims to cover the important judgments on its validity and vital
suggestion by SAHRDC on such laws.

Keywords: Democratic, Detention, Administrative, Scrutiny and Suspension.

INTRODUCTION

Caste, Communal Violence and Terrorism have become very common in today's world whereas
Article 21 of The Indian Constitution ensures equality, national security and human freedom as it
being the core principle of Constitution. To maintain the British rule legacy or to retain the
internal security The Indian Government while framing our constitution choose to keep
preventive detention law as a method of combating anti-national activities. Government's
approach has always been strong in repressing criminals from doing illicit acts.

The term "preventive detention" refers to the act of holding someone in custody so that they
cannot provide evidence or testimony in connection with a possible crime. A person is arrested
and held without a trial under preventative detention. While an arrest and imprisonment in a
regular criminal jail may happen in either a crisis or under normal circumstances, the Law on
Preventive Detention is fundamentally different. Put differently, preventative detention is a
measure adopted by the government because of concern that an individual would engage in
illegal activity with negative consequences for the state. The most problematic component of the
idea of fundamental rights in the Indian Constitution is preventive detention. Article 22(3)
provides that the protections against arrest and imprisonment provided by Articles 22 (1) and 22
(2) do not apply to a person who has been detained or imprisoned under preventive detention
law.

Constitutional paradox of preventive detention laws in India

The Makers of the Indian Constitution decided India to be a democratic country with
fundamental rights enshrined under part III of the Constitution but irony is that they opted to
offer exemption to preventive detention laws while having been victims of the same tyrannical
legislation.

Article 22(3) of the Indian Constitution states, "if the person who has been arrested or detained
under preventive detention laws, then the protection against arrest and detention provided under
Article22 (1) and 22 (2) shall not be available to that person." Preventive detention is a special
provision under Fundamental Rights in the Indian Constitution. The freedom of individuals is
being attacked as Article 22(3) is being called into question.

As per the Entry 9 of the Union list Indian Parliament has the absolute right and ability to adopt
legislation relating to preventative detention for the grounds relating to country's security,
defense and foreign affairs. Central government and State governments have also been given the
authority to create laws relating to the maintenance of public order, the maintenance of supplies
and services vital to the community and so on under concurrent list of Entry 3.

Section 151 of the CrPC states that " an arrest can be made by a police officer having known the
cognizable offence design, without a warrant and magistrate's order, if it appears to the person
designing that the offence cannot be prevented otherwise."

According to the Supreme Court of India's ruling in Union of India v. Paul Nanickan and Anr.,
"the purpose of preventive detention is not to punish a man for having done something, but to
intercept him, before he does it, and prevent him from doing it." However, the only basis for
incarceration of this kind is suspicion or reasonable probability, not a criminal conviction, which
can only be supported by legal evidence.

The law of Preventive detention has failed terribly as the primary goal of enacting preventive
detention legislation was to prevent the conduct of crimes that are detrimental to a state's law and
order, but it has been proven otherwise to be a weapon for restricting an individual's liberty.

Preventive Detention as a tool for executive tyranny

The process of trial has become a new persecution as the backlog of pending cases has been
overburdening day by day which means writ petition challenging preventative detention orders
might take several months to be considered.

To minimize the intervention of judiciary the statute of preventive detention is carefully

administratively managed. This occasionally gives the government unrestrained and practically
uncontrolled authority with no accountability, allowing for grave misuse of such authorities. The
time it takes to seek, much alone obtain, legal remedy helps the executive. Even when such laws
are revealed to be abused, the ultimate purpose of incarcerating the offender for a lengthy period
of time is met.

The right to legal representative and consultation must be seen as a basic human right rather than
viewing it merely through a constitutional or legislative lens. It is hard for a layperson unfamiliar
with legal knowledge and with no past experience of such a circumstance to grasp the reasons for
his imprisonment in the sophisticated world of law. It is completely unrealistic to expect such a
person to provide a competent defense before a panel of attorneys or retired judges.

In addition, Article 22 of the Constitution stipulates that the State may decide to make the
advisory board a purely executive committee; such a body can hardly be said to be apolitical or
free of political influence. Despite the fact that high courts have reversed detention rulings in
similar circumstances, advisory panels often extend the length of time detainees spend in jail.

The Allahabad High Court invalidated, 94 detention decisions out of 120 petition of Habeas
Corpus contesting detention orders under the National Security Agency since January 2018 till
December 2020. In other words, 78.33% of all NSA detention orders were determined to be
inaccurate over a two-year period says the report of Indian Express. This demonstrates that the
constitutional safeguards granted to challenge wrongful imprisonment are ineffective, and the
inmate is forced to seek redress in such cases through the courts.

As previously stated, courts have frequently found that statutory authorities limiting an
individual's personal liberty should be employed methodically, with great care, and not on a
regular basis. Unfortunately, in the museum of judicial jurisprudence this suggestion appears to
be only decorative.

According to several sources, the National Security Agency and other preventive detention
regulations are often exploited in a number of different ways. They might be used to provide the
impression of a strong state, to muzzle critics of the state, or even to satisfy the personal
vendettas of those in positions of power.

As per the reports the preventive detention laws and NSA are frequently unreasonable in many
ways. Most of the time the preventive detention law is used by people who are power just
because of personal rivalry or used by state to suppress the people who are dissenting their
policies or political decisions.
Recently in a statement The Home Secretary of Uttar Pradesh Mr. Awanish Kumar stated the
situation related to the preventive detention law is very grim in their state, as 139 people were
detained by the police under NSA since the past year and 13 cases out 139 were of the people
who were involved in Anti- Citizenship Amendment Act (CAA) rally or protest and 76 were
against the people who were allegedly detained for cow slaughtering.

When we go deeper into the National Herald report of 2018, particularly of the U.P we got to
know about a city named Muzaffarnagar where NSA has become regular against Dalits and
Muslim and in such a way that minor disputes has been also emerged and lead to become a cause
to be charged under NSA.

Talking about the CAA protest, recently we came across the headlines regarding an abuse of
power in very infamous imprisonment of Dr. Kafeel Khan, under the NSA, who took part in anti-
CAA protests after being dramatically arrested in Mumbai by UP police and jailed despite being
released on bail, further he was served with an arrest warrant three days later. The arrest warrant
was eventually overturned by the Allahabad High Court, but it took seven months to complete
the case and was very unfair to him to stay in jail for such a long period just because of this
unnecessary evil law which is used to suppress the voice of people by the state.

Judiciary in Preventive Detention Cases

1. The Allahabad High Court in the case of Prem Narayan v. Union of India, stats that the
preventive detention cannot invoked in such an easy way as individual freedom is a
fundamental right and has been protected under the Constitution of our nation.
2. The Supreme Court in the case of Banka Sneha v. State of Telangana held that, when
the Prisoner starts affecting public order then preventive detention can be invoked only
against him. It cannot be randomly invoked against the person in general who is a reputed
citizen of our country.
3. The Apex Court of India ruled in ShibbanLal v. State of Uttar Pradesh that a court has
no authority to investigate the veracity or accuracy of the facts used to justify an
individual's detention.
 4. The Haradhan Saha case established that the Apex Court would only allow the use of
the preventive detention statute if a person is likely to be prosecuted for a criminal
offence but the regular criminal laws are inadequate to cope with the circumstance.

Comparative Analysis of Preventive Detention Laws

 Preventive detention legislation does not exist in the United States.

 Wartime is the only time they are used in England.
 Despite its introduction by the British government, it was seldom utilized in Ireland.
 Preventive detention is legal in Australia under certain conditions. Asylum seekers, for
instance, are required to be detained in Australian custody whenever they set foot on
Australian soil or in Australian waterways until their refugee status is determined.
 A long tradition of repression, including the use of forced labor, arbitrary arrest, and
incarceration, and the suppression of minority cultures can be traced back to China.
 There are additional Preventive Detention laws in Germany, Japan, Peru, Costa, Canada
and Rica.

India's Preventive Detention Law: A Brief History

Article 22 of India's Constitution, which was established in 1950 after the country gained its
independence from the British in 1947, includes provisions for preventive detention. The
stipulations of Article 22(1&2) are as follows:

Without knowing the reason for his arrest, a person cannot be imprisoned. However, no one has
the right to prevent an arrested individual from being represented by his own attorney. In the
event of an arrest, the accused individual is entitled to legal representation.

Any suspects detained for more than 24 hours must be taken before the closest magistrate. Any
further detention of the suspect requires the approval of the judge. The following people are
excluded from the aforementioned protections, according to Article 22 clause 3, if they are an
extraterrestrial adversary at the moment or if they are being held for "Preventive Detention,"
under a specific legislation.

The Legislative Authority Over Preventive Detention and Its Limits

The Seventh Schedule of the Indian Constitution lists the subjects that may be legislated on at
both the federal and state levels. Preventive detention is listed as Number Nine on the Federal
List (List I) and Number Three on the Concurrent List (List III). It goes as follows:

Preventive detention in the context of Indian defense, foreign policy, or national security; those
detained for such purposes (List I, Entry 9).

List III, Item 3: Preventive detention for grounds related to state security, public order, or the
provision of important community supplies and services; those subjected to such custody.

A majority of the Supreme Court agreed with the defendant in A.K. Gopalan v. State of Madras,
which concluded that a preventative detention act need not identify the precise defense or foreign
affairs problem it was meant to address. To avoid any potential legal complications, it might
simply use these entries as reasons for its actions. This, as we will see, was crucial for courts to
recognize the constitutionality of these laws.

Suggested Actions from the South African Human Resources Development

Commission

Towards the implementation of Preventive Detention Laws (PDL) in India, SAHRDC has
proposed the following:

 In order to ensure "the preservation of public order or maintenance of supplies and

services important to the society," Entry 3 of List III of the Constitution of India should
be removed.
 To ensure meaningful judicial scrutiny of the official's acts, the Constitution should
contain clear criteria for when preventive detention powers may be used.
 Preventive prisoners are not need to be brought before a magistrate within 24 hours of
their arrest, as stated in Article 22 (3) (b) of the PDL (2). In the sake of human dignity, its
repeal is imperative.
  Clarified norms for officials to follow, including judicial review of compliance, should be
included to the Constitution.
 A periodic assessment of the terms and circumstances of incarceration should be required
under the constitution.
 There must be a minimum duration during which detainees are informed of the basis for
their imprisonment and given enough information to contest the legality of their
incarceration.
 It is imperative that Article 22 (3) (b) of the Constitution be removed, since it strips
prisoners of nearly all procedural rights during Advisory Board hearings.
 A constitutional clause ensuring the right to compensation should be included, and the
government should remove its reservation of Article 9 (5) of the ICCPR.

CONCLUSION

Since the Court reintroduced due process into the Constitution, where it has thrived, the entire
foundation for the original minimal constitutional rights provided by Article 22 has disappeared.
Is it, therefore, sufficient to tell us that people who may be arrested and incarcerated without
knowing why and held in jail for months on end have no right to counsel just because the
Constitution stated so from the outset, when the whole environment has changed so
dramatically? Contrary to popular belief, I disagree.

Despite its obvious importance, India has not paid nearly enough attention to enacting
preventative detention laws. Especially now, when the global expansion of incarceration without
trial is under fresh scrutiny. Since these laws have been upheld by the courts, there is less of a
need for discussion, and state legislatures are freer to pass more preventative detention measures.
There is nothing inherently wrong with taking precautions, but the Indian legal system, at both
the federal and state levels, lacks any semblance of proportionality. Since copyright infractions
are usually not considered serious crimes, judges should not be allowed to issue arrest warrants
for up to a year's time without a hearing. Let's take a look into the future and find out what awaits
us.

The only acceptable moment to utilize preventive detention is during a state of national
emergency. Preventive detention should be interpreted narrowly and the protections for holding a
person should be firmly enforced. No one's freedom should be put in jeopardy unless there is a
clear legal basis for doing so.

BIBLIOGRAPHY